UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEVIN D. MARSHALL,

Plaintiff-Appellant,

v. No. 97-1516

HOME DEPOT U.S.A., INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, Senior District Judge.

(CA-96-194-5-BR, CA-96-608-5-BR)

Submitted: September 30, 1998

Decided: October 20, 1998

Before MURNAGHAN, ERVIN, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Mitchell Gittin, Port Jefferson Station, New York; Gregory P. Chocklett, Raleigh, North Carolina, for Appellant. John F. Wymer, III, Samuel M. Matchett, POWELL, GOLDSTEIN, FRAZER & MURPHY,

L.L.P., Atlanta, Georgia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Kevin D. Marshall appeals the district court's judgment granting

summary judgment to Home Depot U.S.A., Inc. ("Home Depot") and

dismissing his employment discrimination complaint. Marshall contends the court erred by not specifying the basis for dismissing his

complaint. He also contends there were genuine issues of material

fact regarding his failure to promote claim and hostile work environment claim. Finding no reversible error, we affirm.

Marshall, a black male, began working for Home Depot in 1985 in

one of its Florida retail locations. In 1989, he was transferred to a

store in Patchogue, New York, where he was a supervisor. In 1990,

he was transferred to the East Meadow, New York store and became

a department supervisor. He was soon promoted to Assistant Manager

Trainee and then Assistant Store Manager at which time he was transferred to a store in Commack, New York.

While an Assistant Manager Trainee, a female employee lodged an

internal complaint against him alleging sexual harassment. After an

investigation by Home Depot, Marshall was warned that any other

similar complaint would result in his termination.

In 1992, Marshall transferred to the Farmingdale, New York store.

It was at this store that Marshall alleged he was subjected to a hostile

work environment. Marshall worked at this store for thirteen months

before being transferred to another New York location. In 1994, Marshall transferred to a Home Depot in Cary, North Carolina.

Meanwhile, in April 1994, Marshall filed a complaint with the

Equal Employment Opportunity Commission ("EEOC") and New

York State in which he alleged that he was not promoted to Store

Manager because of his race.

While Marshall was employed at the Cary, North Carolina Home

Depot, a female store employee complained that he had engaged in

sexual harassment. In October 1994, after an investigation corroborated much of the details in the complaint, Marshall was terminated.

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Shortly after his termination, Marshall filed another EEOC complaint. In this complaint, Marshall alleged he was terminated due to

his race and in retaliation for having filed the prior EEOC complaint.

In March 1995, Marshall filed a complaint in the Eastern District

of New York under Title VII, 42 U.S.C.A. §§ 2000e-2000e-17 (West

1994 & Supp. 1998) ("Title VII") and New York State Human Rights

Law, N.Y. Exec. Law § 296 (McKinney 1997), alleging that he was

subjected to a hostile work environment and denied promotional

opportunities at the New York stores because of his race.

In March 1996, Marshall filed a complaint in the Eastern District

of North Carolina under Title VII and the North Carolina Equal

Employment Practices Act, N.C. Gen. Stat. § 143-422.1 (1996), in

which he alleged that he was terminated due to his race and in retaliation for having filed the EEOC complaint in New York. The complaint filed in the Eastern District of New York was consolidated with

the complaint filed in the Eastern District of North Carolina.

After discovery, Home Depot moved for summary judgment. Marshall did not file an opposition to the motion. The district court found

that "[u]nder full review of the pleadings, affidavits, discovery materials and other matters of record the Court concludes that there are no

genuine issues of material fact with regard to any of the claims in

either of the consolidated cases and that defendant is entitled to summary judgment." (J.A. at 141).

On appeal, Marshall contends that remand is warranted for the purpose of ordering the district court to set forth the reasons for its finding that there was an absence of material issue of fact. This Court

reviews de novo a district court's grant of summary judgment. See

Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995).

Because we undertake the same review of the facts and apply the

same legal standards used by the district court, see Gillins v. Berkeley

Elec. Co-op., Inc., 148 F.3d 413, 415 (4th Cir. 1998), it is not necessary to have before us the district court's specific findings of fact or

conclusions of law. See Summers v. Department of Justice, 140 F.3d

1077, 1079 (D.C. Cir. 1998). Under Fed. R. Civ. P. 52(a), "[f]indings

of fact and conclusions of law are unnecessary on decisions of

motions under Rule 12 or 56 . . . ." Such information may indeed be

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helpful to a reviewing court, but in this instance, not essential. See

Domegan v. Fair, 859 F.2d 1059, 1066 (1st Cir. 1988).

Even though Marshall did not respond to the summary judgment

motion, the motion may only be granted if Home Depot shows the

absence of a dispute over a material fact and that it is entitled to judgment as a matter of law. See Custer v. Pan Am. Life Ins. Co., 12 F.3d

410, 416 (4th Cir. 1993). Marshall contends that summary judgment

was inappropriate on his failure to promote claim and hostile work

environment claim.* We will take each in turn.

Marshall's failure to promote claim is time-barred. Marshall must

have filed a complaint with the EEOC within 180 days of the incident, or within 300 days of the incident if state or local proceedings

are initiated. See 42 U.S.C. § 2000e-5(e)(1) (1994); Beall v. Abbott

Lab., 130 F.3d 614, 620 (4th Cir. 1997). The failure to file a timely

complaint with the EEOC bars the claim in federal court. See

McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th

Cir. 1994).

The statute of limitations period commenced to run when the Home

Depot made the challenged promotions. See Price v. Litton Bus. Sys.,

Inc., 694 F.2d 963, 965 (4th Cir. 1982) (the filing period runs from

the time at which the employee is informed of the allegedly discriminatory employment decision). By Marshall's own admissions, the

alleged wrongful promotions occurred in 1992, more than 300 days

before he filed his April 1994 EEOC complaint. See Butts v. City of

New York Dep't of Hous. Preservation & Dev., 990 F.2d 1397, 1401

(2d Cir. 1993) (failure to promote claims time-barred because EEOC

complaint not filed within 300 days of the promotion). Marshall cannot point to any promotion that occurred within 300 days of filing the

EEOC complaint. Nor does he offer any reason to toll the limitations

period. Thus, we find the summary judgment was appropriately

granted on this claim.

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*Marshall does not challenge the court's decision dismissing his

wrongful termination claim. Accordingly, we deem the claim abandoned.

See 11126 Baltimore Blvd., Inc. v. Prince George's County, 58 F.3d 988,

993 n.7 (4th Cir. 1995) (issues not briefed or argued are deemed abandoned).

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Likewise, Marshall's hostile work environment claim is foreclosed.

Marshall never raised this claim in either of his two EEOC complaints. When claims "raised under Title VII exceed the scope of the

EEOC charge and any charges that would naturally have arisen from

an investigation thereof, they are procedurally barred." See Dennis v.

County of Fairfax, 55 F.3d 151, 156-57 (4th Cir. 1995); see also

Davis v. North Carolina Dep't of Correction, 48 F.3d 134, 137 (4th

Cir. 1995) ("Before a federal court may assume jurisdiction over a

claim under Title VII, however, a claimant must exhaust the administrative procedures.").

Thus, we affirm the judgment of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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